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EXHIBIT 10.1
TA OPERATING CORPORATION
TRANSITION PLAN
Effective Date: March 2, 2000
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TABLE OF CONTENTS
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<TABLE>
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PAGE
<S> <C> <C>
ARTICLE 1 NAME AND PURPOSE 1-1
ARTICLE 2 DEFINITIONS 2-1
ARTICLE 3 ELIGIBILITY AND PARTICIPATION 3-1
ARTICLE 4 SEVERANCE BENEFITS 4-1
ARTICLE 5 CLAIMS PROCEDURE 5-1
ARTICLE 6 ADMINISTRATION 6-1
ARTICLE 7 AMENDMENT AND TERMINATION 7-1
ARTICLE 8 PARTICIPATING EMPLOYERS 8-1
ARTICLE 9 MISCELLANEOUS 9-1
</TABLE>
(i)
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TA OPERATING CORPORATION
TRANSITION PLAN
This Declaration of Plan is entered into as of the 2nd day of March,
2000 (the "Effective Date"), by TA Operating Corporation, a Delaware corporation
(hereinafter referred to as the "Company").
WITNESSETH:
WHEREAS, the Company anticipates that it will experience a Change of
Control (as hereinafter defined) within the next several months following the
Effective Date; and
WHEREAS, the Company wishes to provide, for certain of its employees
and certain of the employees of its subsidiaries and affiliates, certain
benefits intended to protect them in the transition process incident to such
Change of Control in order that the interests of the Company and its
shareholders will be maximized by allowing such employees to focus exclusively
on maximizing the value of the shareholders' interests through and after the
Change of Control; and
WHEREAS, the Company desires to document formally the provisions and
terms and conditions of such benefits;
NOW, THEREFORE, the Company hereby adopts the TA Operating Corporation
Transition Plan, effective March 2, 2000, as follows:
(ii)
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ARTICLE 1
NAME AND PURPOSE
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1.1 NAME. The name of this Plan is the TA OPERATING CORPORATION
TRANSITION PLAN.
1.2 PURPOSE. This Plan is hereby established in order to provide
eligible Employees of the Company and Participating Employers with certain
protections in the event of a Change of Control.
1.3 EMPLOYEE WELFARE BENEFIT PLAN. This Plan is intended to be an
employee welfare benefit plan as defined in Section 3(1) of ERISA (as
hereinafter defined). This Plan shall be administered in such a manner, and
benefits hereunder shall be so limited, notwithstanding any contrary provision
of this Plan, that this Plan shall be an employee welfare benefit plan as
defined in Section 3(1) of ERISA and not an employee pension benefit plan as
defined in Section 3(2) of ERISA in conformity with U.S. Department of Labor
Regulation Section 2510.3-2(b).
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ARTICLE 2
DEFINITIONS
-----------
Unless the context otherwise indicates, the following words used herein
shall have the following meanings wherever used in this Plan:
2.1 ADOPTION DATE. The words "Adoption Date" shall mean the date as of
which any Affiliate becomes a Participating Employer under this Plan.
2.2 AFFILIATE. The word "Affiliate" shall mean a corporation which
would be defined as a member of a controlled group of corporations that includes
a Participating Employer or any business organization that would be defined as a
trade or business (whether or not incorporated) which is under "common control"
with such Participating Employer within the meaning of Sections 414(b) and (c)
of the Code, that includes a Participating Employer but, in each case, only
during the periods any such corporation, business organization or member would
be so defined.
2.3 ANNUAL BONUS. The words "Annual Bonus" shall mean, for any fiscal
year of the Company to which it applies, the bonus payable to an Employee under
the applicable annual bonus plan or arrangement of the Company or an Affiliate.
2.4 BASE SALARY. The words "Base Salary" shall mean the base salary
payable to an Employee. Base Salary shall not include any differentials,
premiums, bonuses (including the Annual Bonus) or incentive compensation paid to
the Employee.
2.5 BOARD. The word "Board" shall mean the Board of Directors of TA
Operating Corporation.
2.6 CAUSE. The word "Cause" shall mean the following:
(a) the Participant's misappropriation of money or other
assets or property, breach of fiduciary duty,
tortious conduct or other act of dishonesty with
respect to the Company or any Affiliate; the
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Participant's conviction of, or plea of guilty or
nolo contendere to, any act of fraud, embezzlement,
tortious conduct or any crime for an offense that
constitutes a felony, or the Participant's indictment
for any crime involving dishonesty or moral
turpitude;
(b) the Participant's continuing, repeated willful
failure or refusal to follow his direct or indirect
superior's directions which failure or refusal
continues following the Participant's receipt of
written notice from such superior advising him of the
acts or omissions that constitute the failure to
perform his duties as an Employee of the Company or
an Affiliate, if such failure continues after the
Participant shall have had a reasonable opportunity
to correct the act or omissions so complained of;
(c) the Participant's violation of the Company's drug
abuse or alcohol abuse policy; or
(d) a breach of any of the "Restrictive Covenants" as
defined in a Participation Agreement between the
Company and the Participant.
2.7 CHANGE OF CONTROL. The words "Change of Control" shall mean the
occurrence of any the following events during the Term of this Plan:
(a) any "person," as such term is used in Sections 13(d)
and 14(d) of the Exchange Act, becomes the beneficial
owner (as defined in Rule 13d-3 promulgated under the
Exchange Act) of fifty-one percent (51%) or more of
the voting power of the then-outstanding voting
securities of the Parent; provided, however, that the
foregoing does not apply to any such acquisition that
is made by (i) the Company or any Affiliate or (ii)
any employee benefit plan maintained either by the
Company or any Affiliate;
(b) the Parent merges into itself, or is merged or
consolidated with, another corporation and as a
result of such merger or consolidation less than
fifty-one (51%) of the voting power of the
then-outstanding voting securities of the surviving
or resulting corporation immediately after such
transaction are owned in the aggregate by the former
shareholders of the Parent immediately prior to such
transaction;
(c) all or substantially all the assets accounted for on
the consolidated balance sheet of the Company and the
Affiliates, in the aggregate, are sold or transferred
to one or more corporations or persons, and as a
result of such sale or transfer less than fifty-one
percent (51%) of the voting power of the
then-outstanding voting securities of such
corporation or person immediately after such sale or
transfer
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is held in the aggregate by the former shareholders
of the Parent immediately prior to such transaction
or series of transactions;
(d) fifty-one percent (51%) or more of the assets
accounted for in the consolidated balance sheet of
Company and its Affiliates, in the aggregate, are
sold or transferred to one or more corporations or
persons, whether such sale or transfer is
accomplished by the sale or transfer of assets
directly, the sale or transfer of stock of the
Company or one or more Affiliates or otherwise with,
in any case, an aggregate value of fifty-one percent
(51%) or more of the aggregate value of the Company
and its Affiliates, or any combination of methods by
which fifty-one percent (51%) or more of the
aggregate value of the Company and its Affiliates are
sold or transferred, if, immediately after such sale
or transfer, the purchaser or transferee is less than
fifty-one percent (51%) owned, in the aggregate, by
the persons who are the shareholders of the Parent
immediately prior to such sale or transfer; or
(e) during any period of two (2) consecutive years,
including, without limitation, the year 1999,
individuals who at the beginning of any such period
constitute the Board of Directors of the Parent
cease, for any reason, to constitute at least a
majority thereof, unless the election or nomination
for election of each Director first elected during
such period was approved by a vote of at least a
majority of the members of the Board of Directors of
the Parent who were members of the Board of Directors
of the Parent on the date of the beginning of any
such period.
Without otherwise limiting the generality of the foregoing, an initial public
offering of the Common Stock of the Parent shall not be deemed a "Change of
Control" for purposes of this Agreement.
2.8 CODE. The word "Code" shall mean the Internal Revenue Code of 1986,
as it may be amended from time to time, and lawful regulations and
pronouncements promulgated thereunder. Whenever a reference is made to a
specific Code Section, such reference shall be deemed to include any successor
Code Section having the same or a similar purpose.
2.9 COMMON STOCK. The words "Common Stock" shall mean the shares of
common stock, par value $.01 per share, of the Parent.
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2.10 COMMITTEE. The word "Committee" shall mean the Benefit Appeals
Committee established as provided in Article 5.
2.11 COMPANY. The word "Company" shall mean TA Operating Corporation, a
Delaware corporation, and any successor corporation or business organization
which shall assume the duties and obligations of the Company by operation of law
or otherwise under this Plan.
2.12 DISABILITY. The word "Disability" shall mean the physical or
mental inability of the Participant to perform, consistent with past practice,
the essential functions of the Participant's duties with reasonable
accommodation to the extent required by the applicable requirements of the
Americans with Disabilities Act, for at least twelve (12) consecutive months.
The existence of such Disability shall be determined initially by Plan
Administrator. If there is a disagreement between the Participant and the Plan
Administrator as to the existence of such a Disability, such disagreement shall
be resolved by the determination of two (2) physicians, one selected by the
Participant and one selected by the Plan Administrator. If such physicians shall
disagree, the decision shall be made by a third physician selected by the first
two physicians. The fees and expenses of all such physicians shall be paid by
the Plan Administrator.
2.13 EFFECTIVE DATE. The words "Effective Date" shall mean the original
effective date of this Plan, which is March 2, 2000.
2.14 EMPLOYEE. The word "Employee" shall mean any common-law employee
of a Participating Employer or an Affiliate.
2.15 ERISA. The acronym "ERISA" shall mean the Employee Retirement
Income Security Act of 1974, as it may be amended from time to time, and lawful
regulations and pronouncements promulgated thereunder. Whenever a reference is
made to a specific
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ERISA Section, such reference shall be deemed to include any successor ERISA
Section having the same or a similar purpose.
2.16 EXCHANGE ACT. The words "Exchange Act" shall mean the Securities
Exchange Act of 1934, it may be amended from time to time, and lawful
regulations promulgated thereunder. Whenever a reference is made to a specific
Exchange Act Section, such reference shall be deemed to include any successor
Exchange Act Section having the same or a similar purpose.
2.17 GOOD REASON. The words "Good Reason" shall mean the occurrence of
any of the following:
(a) a material reduction in the Participant's
compensation (including benefits) in the aggregate or
his duties or title with respect to the Company or
any of its Affiliates (other than nonsubstantive,
titular or nominal changes); or
(b) a material breach of the terms of this Plan by the
Company or any of its Affiliates unless such breach
is substantially cured within a reasonable period of
time (hereby defined as thirty (30) days) after
written notice advising the Company of the acts or
omissions constituting such breach is actually
received by the Company.
2.18 PARENT. The word "Parent" shall mean TravelCenters of America,
Inc., a Delaware corporation.
2.19 PARTICIPANT. The word "Participant" shall mean any Employee who
becomes a Participant in this Plan pursuant to Article 3 and while he remains a
Participant pursuant to such Article 3.
2.20 PARTICIPATION AGREEMENT. The words "Participation Agreement" shall
mean an Agreement between the Company (regardless of whether the Participant is
an Employee of the Company or of another Participating Employer) and a
Participant evidencing the
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Participant's participation hereunder and setting forth certain special
provisions with respect to the Participant.
2.21 PARTICIPATING EMPLOYER. The words "Participating Employer" shall
mean the Company and any Affiliate which is a participating employer in this
Plan, and any successor corporation or business organization which shall assume
the duties and obligations of one or more Participating Employers by operation
of law or otherwise under this Plan. The Participating Employers as of the
Effective Date are listed in Article 8 of this Plan.
2.22 PLAN ADMINISTRATOR. The words "Plan Administrator" shall mean the
Company or any person or entity designated as Plan Administrator as provided in
Article 6.
2.23 STOCK INCENTIVE PLANS. The words "Stock Incentive Plans" shall
mean the National Auto/Truckstops Holdings Corporation 1993 Stock Incentive
Plan, the TravelCenters of America, Inc. 1997 Stock Incentive Plan, and any
other such plan or individual agreement adopted after the Effective Date.
2.24 SUCCESSOR. The word "Successor" shall mean the entity, other than
the Company, resulting from the consummation of a Change of Control transaction.
2.25 TARGET BONUS. The words "Target Bonus" shall mean, for any fiscal
year of the Company to which it applies, fifty percent (50%) of the Employee's
Base Salary for such fiscal year.
2.26 TERM. The word "Term" shall mean the term of this Plan, which
shall commence on the Effective Date and end on December 31, 2000. The term of
this Plan may be extended beyond December 31, 2000 by written action of the
Board, which action shall state the extended Term.
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2.27 TERMINATION OF EMPLOYMENT. The words "Termination of Employment"
shall mean for any Participant the cessation of his employment duties with the
group of corporations and other business organizations consisting of the
Participating Employers and Affiliates. A transfer of employment between two or
more Participating Employers and Affiliates shall not be deemed to be a
Termination of Employment.
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ARTICLE 3
ELIGIBILITY AND PARTICIPATION
3.1 ELIGIBILITY. Each Employee of a Participating Employer who is
designated on EXHIBIT A hereto, having been determined by the Board to be
eligible to participate in this Plan because of the contribution such Employee
has made or is expected to make to the Company or any Affiliate or any successor
thereto, shall be eligible to participate in this Plan. Such EXHIBIT A shall not
be revised at any time during the Term of this Plan, except to add Participants
or as necessary to reflect the deletion of Participants who have had a
Termination of Employment due to death, Disability, termination for Cause, or
voluntary termination other than for Good Reason.
3.2 PARTICIPATION. Each Employee who satisfies the requirements of
Section 3.1 on or after the Effective Date shall commence participation in this
Plan as of the last to occur of:
(a) the Effective Date;
(b) the date upon which he first satisfies the aforementioned
requirements; or
(c) the date he executes a Participation Agreement.
A Participant shall continue to participate in this Plan as long as he continues
to satisfy the requirements of Section 3.1 and shall cease to be a Participant
immediately upon his Termination of Employment as a result of death, Disability,
termination for Cause or voluntary termination other than for Good Reason. A
Participant shall not cease to be a Participant merely due to transfer to an
Affiliate which is not a Participating Employer. An Employee who was previously
a Participant and ceased to be a Participant, but again satisfies the
requirements of Section 3.1,
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shall immediately recommence participation in this Plan upon execution of a new
Participation Agreement.
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ARTICLE 4
SEVERANCE BENEFITS
4.1 SEVERANCE COMPENSATION. If, within the twelve (12) month period
following a Change of Control occurring during the Term of this Plan, a
Participant's employment is terminated by the Company or an Affiliate other than
for Cause or the Participant resigns for a Good Reason, then the Participant
shall be entitled to the following severance benefits:
(a) the Company (or other Participating Employer or
Affiliate, as determined by the Company) shall pay
the Participant any unpaid and accrued Base Salary to
the date of such Termination of Employment within
thirty (30) days of such Termination of Employment,
plus an amount equal to the product of (A) multiplied
by (B), where (A) equals the Participant's Annual
Bonus, if any, determined by the Compensation
Committee for the year in which his discharge or
resignation occurred and where (B) equals a fraction,
the numerator of which equals the number of days in
the calendar year during which the Participant was
employed by the Company, and the denominator of which
equals three hundred sixty-five (365), which amount
shall be payable on the same date that active
employees are paid similar Annual Bonuses;
(b) the Company (or other Participating Employer or
Affiliate, as determined by the Company) shall pay
the Participant, as severance pay and not as Base
Salary, an amount calculated on the basis of his Base
Salary, at the times provided and as set forth in the
Participation Agreement between the Company and the
Participant;
(c) the Company (or other Participating Employer or
Affiliate, as determined by the Company) shall pay
the Participant, as severance pay and not as Annual
Bonus, an amount calculated on the basis of his
Target Bonus, at the times provided and as set forth
in the Participation Agreement between the Company
and the Participant;
(d) benefits under stock options granted to the
Participant pursuant to the Stock Incentive Plans
vested as of the date of such Termination of
Employment, or any amount payable under any other
benefit plan of the Company or any Affiliate in
accordance with the terms
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of such plan (i.e., this Plan shall not increase,
decrease or affect the timing of benefits under such
options or plans except as provided in Section 4.1(e)
below); and
(e) if the Participant (and/or his spouse and/or
dependents) properly elect continued COBRA medical
coverage, the Company (or other Participating
Employer or Affiliate, as determined by the Company)
and the Participant (and/or his spouse and/or
dependents) each shall pay their same portions of the
premiums for such medical coverage as if the
Participant had remained in the employ of the
Participating Employer or Affiliate until the
Participant shall elect to discontinue such coverage,
provided that the obligation of the Company (or other
Participating Employer or Affiliate, as determined by
the Company) under this Section 4.1(e) shall cease
upon the expiration of the later of (i) the maximum
required period of coverage under Code Section
4980B(f), or (ii) eighteen (18) months after the date
of such Termination of Employment.
If the Participant has a Termination of Employment due to his death, Disability,
termination for Cause or voluntary termination other than for Good Reason, then
the Participant will not be entitled to any compensation or benefits hereunder.
Notwithstanding the foregoing, as more fully and generally provided in Section
4.4 , this Section 4.1 shall not be interpreted to deny the Participant any
compensation earned to the date of his Termination of Employment but not yet
paid, or any benefits to which he may be entitled under any plan or arrangement
of a Participating Employer or Affiliate applicable to the Participant other
than this Plan.
Notwithstanding anything contained in this Plan to the contrary, if the
Participant claims the existence of a Good Reason, he must notify the Company in
writing of the event constituting Good Reason not later than sixty (60) days
following the later to occur of the occurrence of the event constituting Good
Reason or his actual knowledge thereof. If the event which the Participant
claims to be a Good Reason is not cured within thirty (30) days following the
date of such notice, the Participant must resign within ten (10) days following
the thirty (30) day cure period in order to invoke his right to resign for Good
Reason. If no such timely
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resignation occurs or no such timely written notices are given, the
Participant's right to resign for Good Reason with respect to such event shall
be permanently waived.
Notwithstanding anything contained in this Plan to the contrary, other
than in Section 4.4, if the Participant breaches any of the Participant's
obligations under his Participation Agreement, if any, no further severance
payments or other benefits will be payable to the Participant under this Section
4.1, but any amounts previously paid to the Participant shall not be recoverable
by the Participating Employers or Affiliates.
4.2 LIMITATION OF BENEFITS. Notwithstanding anything contained in this
Plan to the contrary, in order to prevent this Plan from being deemed a pension
plan under ERISA, (a) the payment of all amounts which are severance payments or
severance benefits within the meaning of U.S. Department of Labor Regulation
Section 2510.3-2(b) to a Participant shall be completed within twenty-four (24)
months after his Termination of Employment; and (b) the total amount of such
payments or benefits to any Participant shall be limited to the equivalent of
twice the Participant's "annual compensation," as such term is defined in U.S.
Department of Labor Regulation Section 2510.3-2(b), during the year immediately
preceding his Termination of Employment.
4.3 SOURCE OF SEVERANCE PAYMENTS. A Participating Employer shall be
liable for the severance payments hereunder of those Participants who are
employees of such Participating Employer; provided, however, that with respect
to any Participant's severance payments hereunder, in addition to the
Participating Employer of which the Participant is an employee, there shall also
be jointly and severally liable any other Participating Employer which is an
eighty percent (80%) or greater parent or subsidiary of such Participating
Employer. All
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severance payments made pursuant to the terms of this Plan shall be made out of
the general assets of one or more of the Participating Employers.
4.4 OTHER BENEFITS. Except as otherwise specified herein, a Participant
may receive coverage under such benefit plans of the Participating Employers as
are then in effect with respect to such Participant, for such period and on such
terms, following his Termination of Employment, as the Participating Employers
shall determine in their respective capacities as plan sponsors, in their sole
and complete discretion, or as may be provided under the terms of such other
plans. Such coverage need not be consistent as between similarly situated
Participants, except as required by such other plans.
4.5 EFFECT ON OTHER PLANS. To the extent any provisions of this Plan
modify the terms of any existing plan, policy or arrangement affecting the
compensation or benefits of a Participant, as appropriate, (a) such modification
as set forth herein shall be deemed an amendment to such plan, policy or
arrangement as to the Participant, and both the Participating Employer and the
Participant hereby consent to such amendment, (b) the Participating Employer
will appropriately modify such plan, policy or arrangement to correspond to this
Plan with respect to the Participant, or (c) the Participating Employer will
provide an "Alternative Benefit," as defined in Section 4.6 , to or on behalf of
the Participant in accordance with the provisions of such Section 4.6.
4.6 ALTERNATIVE SATISFACTION OF PARTICIPATING EMPLOYERS' OBLIGATIONS.
In the event this Plan provides for payments or benefits to or on behalf of the
Participant which cannot be provided under the Participating Employers' benefit
plans, policies or arrangements, either because such plans, policies or
arrangements no longer exist or no longer provide such benefits or because
provision of such benefits to the Participant would adversely affect the tax
qualified
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or tax advantaged status of such plans, policies or arrangements for the
Participant or other participants therein, the Participating Employers may
provide the Participant with an "Alternative Benefit," as defined in this
Section 4.6, in lieu thereof. The Alternative Benefit is a benefit or payment
which places the Participant and the Participant's dependents in at least as
good of an economic position as if the benefit promised by this Plan (a) were
provided exactly as called for by this Plan, and (b) had the favorable economic,
tax and legal characteristics customary for plans, policies or arrangements of
that type. Furthermore, if such adverse consequence would affect the Participant
or the Participant's dependents, the Participant shall have the right to require
that the Participating Employers provide such an Alternative Benefit.
4.7 NO MITIGATION OR OFFSET. In the event of any Termination of
Employment, the Participant shall be under no obligation to seek other
employment. Amounts due the Participant under this Plan shall not be offset by
any remuneration attributable to any subsequent employment he may obtain.
4.8 FORFEITURE. If at any time when the Company is obligated to make
payments under this Plan, the Participant engages in any activity violative of
Section 6(a) of his Participation Agreement, then, as of the date the
Participant commences engaging in such activity, all of the Company's
obligations to pay compensation or other amounts payable under this Plan to or
for the benefit of the Participant shall terminate except for (i) any vested
benefits under any awards to the Participant pursuant to the Stock Incentive
Plans and (ii) any amount payable under any other benefit plan of the Company or
any Affiliate in accordance with the terms of such plan.
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ARTICLE 5
CLAIMS PROCEDURE
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5.1 CLAIMS FOR BENEFITS. Claims for benefits shall be made by
application of the Participant in such a manner as the Plan Administrator shall
prescribe. Without limiting the generality of the foregoing, such a claim for
benefits may take the form of (a) a response by the Participant to a proposed
benefit or (b) solicited or unsolicited claim for benefits by the Participant.
The Plan Administrator shall process each such claim and determine entitlement
to benefits within ninety (90) days following its receipt of a completed
application for benefits unless special circumstances require an extension of
time for processing the claim. If such an extension of time for processing is
required, written notice of the extension shall be furnished to the Participant
prior to the termination of the initial ninety (90) day period. In no event
shall such extension exceed a period of ninety (90) days from the end of such
initial period. The extension notice shall indicate the special circumstances
requiring an extension of time and the date as of which the Plan Administrator
expects to render the final decision.
The Plan Administrator shall notify a Participant in writing, delivered
in person or mailed by first class mail to such Participant's last known
address, if any part of a claim for benefits under this Plan has been denied,
setting forth in such notice:
(a) the specific reason for the denial;
(b) a specific reference to pertinent Plan provisions
upon which the denial is based;
(c) a description of any additional material or
information deemed necessary by the Plan
Administrator for such Participant to perfect his
claim, and an explanation of why such material or
information is necessary; and
(d) an explanation of the claim review procedure under
the Plan.
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Such notice shall set forth the above information in a manner
calculated to be understood by such Participant. If the notice referred to above
is not furnished and if the claim has not been granted within the time specified
above for processing of such claim, the claim shall be deemed denied and shall
be subject to review as set forth below.
5.2 REVIEW OF CLAIM DENIALS. Any Participant or any authorized
representative of such Participant whose claim for benefits under this Plan has
been denied or deemed denied, in whole or in part, by the Plan Administrator may
upon written notice to the Committee request a review by the Committee (as
defined in Section 5.3) of such denial of his claim for benefits. Such
Participant shall have sixty (60) days from the date the claim is deemed denied,
or sixty (60) days from receipt of the notice denying the claim, as the case may
be, in which to request a review by written application delivered to the
Committee, which must specify the relief requested and the reason such
Participant believes the denial should be reversed.
The Committee is hereby authorized to review the facts and relevant
documents as well as this Plan, to interpret this Plan and other relevant
documents and to render a decision on the claim of the Participant. Such review
may be made by written briefs submitted by the Participant and the Plan
Administrator or at a hearing, or by both as shall be deemed necessary by the
Committee. Any such hearing shall be held in the main offices of the Company or
such other location as the Committee shall select on such date and at such time
as the Committee shall designate upon not less than fifteen (15) days notice to
the Participant and the Plan Administrator unless both of them accept shorter
notice. The notice shall specify that such Participant must indicate in writing,
at least five (5) days in advance of the time established for such hearing, his
intention to appear at the appointed time and place, or the hearing will be
automatically cancelled. The reply shall specify any other persons who will
accompany him to the hearing, or
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such other persons will not be admitted to the hearing. The Committee shall make
every effort to schedule the hearing on a day and at a time which is convenient
to both the Participant and the Plan Administrator. The Participant, or his duly
authorized representative, may review all pertinent documents relating to the
claim in preparation for the hearing and may submit issues and comments in
writing prior to or during the hearing.
After the review has been completed, the Committee shall render a
decision in writing, a copy of which shall be sent to both the Participant and
the Plan Administrator. In rendering its decision, the Committee shall have full
power, authority and discretion to interpret this Plan and any other relevant
documents, to resolve ambiguities, inconsistencies and omissions, to determine
any and all questions of fact, to determine the right to benefits of, and the
amount of benefits, if any, payable to the Participant in accordance with the
provisions of this Plan. Such decision shall be final and binding on the
Participant and the Plan Administrator.
The decision of the Committee shall be delivered in writing within
thirty (30) days after the hearing, but, in any event it shall not ordinarily be
delivered later than sixty (60) days after this Plan's receipt of a request for
review, unless special circumstances (such as the need to hold a hearing)
require an extension of time for processing, in which case a decision shall be
rendered as soon as possible, but not later than one hundred and twenty (120)
days after receipt of a request for review. If such an extension of time for
review is required because of special circumstances, written notice of the
extension shall be furnished to the Participant prior to the commencement of the
extension. The decision on review shall be in writing and shall include all
specific reasons for the decision, written in a manner calculated to be
understood by the Participant, as well as specific references to the pertinent
Plan provisions on which the decision is based. The decision on review shall be
furnished to the Participant within the
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appropriate time described above. If the decision on review is not furnished
within such time, the claim shall be deemed denied on review.
No legal action may be commenced by any Participant or other person
against any Participating Employer or Affiliate, the Plan, the Plan
Administrator or any other person or any employee of any of the foregoing or the
Board or Committee (or any member of either) in connection with any claim
hereunder until such Participant or other person has pursued such claim under
this claims procedure through the review process described in this Article.
Thereafter, no such legal action may be commenced by such Participant or other
person more than one hundred eighty (180) days after the Committee's final
decision has been rendered with respect to such claim.
5.3 ESTABLISHMENT OF THE COMMITTEE. The Board shall appoint the members
of the Committee, which shall consist of three (3) or more members, one of whom
shall be the Chief Executive Officer of the Company. The members of the
Committee shall remain in office at the will of the Board, and the Board may
from time to time remove any of said members with or without cause. The fact
that a person is a Participant, prospective Participant or former Participant in
this Plan shall not disqualify him from acting as a member of the Committee. A
member of the Committee may resign upon written notice to the remaining member
or members of the Committee and to the Board respectively. In case of the death,
resignation or removal of any member of the Committee, the remaining members
shall act until a successor-member shall be appointed by the Board. Upon request
by the Plan Administrator, the Board shall notify the Plan Administrator of the
names of the original members of the Committee, of any and all changes in the
membership of the Committee, of the member designated as Chairman, and the
member designated as Secretary, and of any changes in either office. Until
notified of a change,
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the Plan Administrator shall be protected in assuming that there has been no
change in the membership of the Committee or the designation of Chairman or of
Secretary since the last notification was filed with it. The Plan Administrator
shall be under no obligation at any time to inquire into the membership of the
Committee or its officers. All communications to the Committee shall be
addressed to its Secretary at the address of the Company.
5.4 GOVERNANCE OF THE COMMITTEE. On all matters and questions the
decision of a majority of the members of the Committee shall govern and control.
Meetings may be held in person or by electronic means. In lieu of a meeting,
decisions may be made by unanimous written consent. The Committee shall appoint
one of its members to act as its Chairman and another member to act as
Secretary. The terms of office of these members shall be determined by the
Committee, and the Secretary and/or Chairman may be removed by the other members
of the Committee for any reason which such other members may deem just and
proper. The Secretary shall do all things directed by the Committee. Although
the Committee shall act by decision of a majority of its members as above
provided, nevertheless in the absence of written notice to the contrary, every
person may deal with the Secretary and consider his acts as having been
authorized by the Committee. Any notice served or demand made on the Secretary
shall be deemed to have been served or made upon the Committee.
5.5 ADDITIONAL COMMITTEE RULES. No member of the Committee shall be
disqualified from acting on any question because of his interest therein. No fee
or compensation shall be paid to any member of the Committee for his services as
such, but the Committee shall be reimbursed for its expenses by the Company. The
Committee may hire such attorneys, accountants, actuaries, agents, clerks, and
secretaries as it may deem desirable in the performance of its functions, any of
whom may also be advisors to any Participating Employer
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or Affiliate and the expense associated with the hiring or retention of any such
person or persons shall be paid directly by the Company.
5.6 NO LIABILITY. Neither the Committee nor any of its members shall be
liable for any act taken by the Committee pursuant to any provision of this Plan
except for gross abuse of the discretion given it and them hereunder. No member
of the Committee shall be liable for the act of any other member.
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ARTICLE 6
ADMINISTRATION
6.1 APPOINTMENT OF PLAN ADMINISTRATOR. The Plan Administrator shall be
appointed by the Board, and may be removed or may resign upon thirty (30) days
written notice, or such lesser period of notice as is mutually agreeable. In the
absence of another designation, the Company shall be the Plan Administrator and
the Company's duty and authority to determine the eligibility for, amount and
timing of the severance benefit payments pursuant to Article 4 and is hereby
delegated to the Chief Financial Officer of the Company.
6.2 POWERS AND DUTIES OF THE PLAN ADMINISTRATOR. Except as expressly
otherwise set forth herein, the Plan Administrator shall have the authority and
responsibility granted or imposed on a "plan administrator" by ERISA. The Plan
Administrator shall determine any and all questions of fact, resolve all
questions of interpretation of this Plan which may arise under any of the
provisions of this Plan as to which no other provision for determination is made
hereunder, and exercise all other powers and discretions necessary to be
exercised under the terms of this Plan which it is herein given or for which no
contrary provision is made. The Plan Administrator shall have full power and
discretion to interpret this Plan and related documents, to resolve ambiguities,
inconsistencies and omissions, to determine any question of fact, and to
determine the rights and benefits, if any, of any Participant or other
applicant, in accordance with the provisions of this Plan. Subject to the
provisions of any claims procedure hereunder, the Plan Administrator's decision
with respect to any matter shall be final and binding on all parties concerned,
and neither the Plan Administrator nor any of its members, directors, officers,
employees or delegates nor, where applicable, the members, directors, officers
or employees of any delegate, shall be liable in that regard except for gross
abuse of the discretion given it and them under the terms of this Plan. The Plan
Administrator may, from
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time to time, by action of its appropriate executives or officers, as the case
may be, delegate to designated persons or entities the right to exercise any of
its powers or the obligation to carry out any or all of its duties as Plan
Administrator.
6.3 ENGAGEMENT OF ADVISORS. The Plan Administrator may employ
actuaries, attorneys, accountants, brokers, employee benefit consultants, and
other specialists to render advice concerning any responsibility the Plan
Administrator or Committee has under this Plan. Such persons may also be
advisors to any Participating Employer or Affiliate.
6.4 PAYMENT OF COSTS AND EXPENSES. The costs and expenses incurred in
the administration of this Plan shall be paid directly by one or more of the
Participating Employers in either of the following manners as determined by the
Company in its sole discretion:
(a) the expenses may be paid directly by one or more of
the Participating Employers; or
(b) the expenses may be paid out of any trust fund or
account maintained hereunder.
Such costs and expenses include those incident to the performance of the
responsibilities of the Plan Administrator or Committee, including but not
limited to, claims administration fees and costs, fees of accountants, legal
counsel and other specialists, bonding expenses, and other costs of
administering this Plan. Notwithstanding the foregoing, in no event will any
person serving in the capacity of Plan Administrator, or Committee member who is
a full-time employee of a Participating Employer or an Affiliate, be entitled to
any compensation for such services.
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ARTICLE 7
AMENDMENT AND TERMINATION
7.1 AMENDMENT PROCEDURE. The Company may (without the consent of any
other Participating Employer) amend this Plan at any time, or from time to time,
as evidenced by an instrument in writing executed in the name of the Company by
any two of the executive officers of the Company. Any such amendment may be made
retroactively effective and shall be binding upon the Participants, except as
provided in Section 3.1 and except that no such amendment shall retroactively
deprive a Participant of a benefit hereunder.
7.2 TERMINATION. Unless extended by action of the Board, this Plan
shall terminate effective December 31, 2000. If so extended, the Company
reserves the right (without the consent of any Participating Employer) to
terminate this Plan at any time after December 31, 2000, as evidenced by an
instrument in writing executed in the name of the Company by any two of the
executive officers of the Company, provided such termination shall not be
retroactive. The Term shall expire on the later of December 31, 2000, or such
later date as this Plan shall terminate.
7.3 RESULT OF PLAN TERMINATION. If the employment of a Participant
terminates, whether voluntarily or involuntarily, on a date after the later of
(i) the last day of the Term of this Plan or (ii) the last day of the twelve
(12) month period following a Change of Control which occurs during the Term of
this Plan, he shall not be eligible to receive any severance benefits under this
Plan nor any benefits or payments under any Participation Agreement, and this
Plan and all such Participation Agreements shall be considered null and void as
of the first day following the later of such last days.
7.4 CHANGE OF CONTROL. In the event of a Change of Control during the
Term of this Plan, no amendment or termination of this Plan may reduce any
severance benefits
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payable under this Plan or any Participation Agreement due to any Termination of
Employment occurring within the twelve (12) month period following such Change
of Control.
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<PAGE> 29
ARTICLE 8
PARTICIPATING EMPLOYERS
8.1 LIST OF PARTICIPATING EMPLOYERS. The initial Participating
Employers as of the Effective Date are as follows:
Participating Employers
-----------------------
TA Operating Corporation
TravelCenters of America, Inc.
National Auto/Truckstops, Inc.
TA Franchise Systems, Inc.
TA Licensing, Inc.
The Company may add or remove Participating Employers during the Term.
Such addition or removal shall be by action of the Board. Such addition or
deletion shall not require a formal amendment hereto but shall be subject to
Section 7.4 following a Change of Control.
8.2 DELEGATION OF AUTHORITY. The Company is hereby fully empowered to
act on behalf of itself and the other Participating Employers as it may deem
appropriate in maintaining this Plan. Furthermore, the adoption of any amendment
to this Plan, or the termination of this Plan, in accordance with Article 7,
will constitute and represent, without any further action on the part of any
Participating Employer, the approval, adoption, ratification or confirmation by
each Participating Employer of any such amendment or termination. In addition,
the appointment of or removal by the Board of any Committee member or the
appointment by the Board of any Plan Administrator or other person under this
Plan shall constitute and represent, without any further action on the part of
any Participating Employer, the appointment or removal by each Participating
Employer of such person.
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ARTICLE 9
MISCELLANEOUS
9.1 EXCLUSIVE BENEFIT. This Plan has been adopted for the exclusive
benefit of the eligible Participants. Notwithstanding the foregoing provisions
of this Section, nothing herein contained shall be construed as giving to any
Participant or any other person any legal or equitable right against any
Participating Employer or any Affiliate unless such right shall exist by reason
of the express provisions of this Plan or any action taken pursuant thereto and
in compliance therewith.
9.2 NO ASSETS. Except to the extent expressly otherwise provided
herein, participation in this Plan shall not entitle any Participant to any
assets of any Participating Employer or Affiliate. No assets shall in any way be
set aside or segregated from the general assets of the Participating Employers
or Affiliates by reason of a Participant's participation herein except to the
extent expressly provided herein.
9.3 NO EMPLOYMENT RIGHT. Nothing herein contained shall be construed
as giving any Employee the right to be retained in the service of a
Participating Employer or any Affiliate or shall in any way affect the right of
a Participating Employer or any Affiliate to control its employees and to
terminate the service of any Employee at any time.
9.4 WITHHOLDING. A Participating Employer may withhold from any amounts
payable under this Plan such federal, state or local taxes or other amounts as
shall be required to be withheld pursuant to any applicable law or regulation.
9.5 CONSTRUCTION. This Plan shall be construed in accordance with the
laws of the State of Ohio and of the United States of America.
9.6 NO LIABILITY. No liability shall be incurred by a Participating
Employer or any Affiliate beyond the specific provisions of this Plan.
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<PAGE> 31
9.7 SATISFACTION OF CLAIMS. Any payment to any Participant, or to his
legal representative in accordance with the provisions of this Plan shall to the
extent thereof be in full satisfaction of all claims hereunder against the Plan
Administrator and any Participating Employer or any Affiliate, and the Plan
Administrator may require such Participant or legal representative as a
condition precedent to such payment, to execute a receipt and release therefor
in such form as shall be determined by the Plan Administrator.
9.8 SEVERABILITY. If any provision of this Plan is held invalid or
unenforceable, such invalidity or unenforceability shall not affect any other
provisions, and this Plan shall be construed and enforced as if such provisions
had not been included.
9.9 INTERPRETATION. All provisions of this Plan shall be interpreted
and administered in accordance with the provisions of ERISA in a manner which
will assure compliance of this Plan's operation therewith.
9.10 IMPOSSIBILITY. In the event that it becomes impossible for any
Participating Employer or the Plan Administrator to perform any act under this
Plan, that act shall be performed which, in the judgment of the Company, or Plan
Administrator, as the case may be, will most nearly carry out the intent and
purpose of this Plan.
9.11 NUMBER. The singular herein shall include the plural, or vice
versa, wherever the context so requires.
9.12 GENDER. A pronoun in the masculine, feminine or neuter gender
shall be deemed where appropriate to include also the masculine, feminine or
neuter gender.
9.13 MULTIPLE FIDUCIARY CAPACITIES. A person may serve in more than one
fiduciary capacity hereunder.
9-2
<PAGE> 32
9.14 INDEMNIFICATION. The Participating Employers shall jointly and
severally indemnify, defend, and hold harmless any Employee of any Participating
Employer or Affiliate, or any member of the Board of Directors of any
Participating Employer or Affiliate, for all acts taken or omitted in carrying
out the responsibilities of the Company, any Participating Employer, the Plan
Administrator, the Committee or the Board under the terms of this Plan or other
responsibilities imposed upon such individual by law. This indemnification for
all such acts taken or omitted is intentionally broad, but shall not provide
indemnification for any civil penalty that may be imposed under Section 502(i)
of ERISA, nor shall it provide indemnification for embezzlement or diversion of
funds or other property for the benefit of any such individual. The
Participating Employers shall jointly and severally indemnify any such
individual for expenses of defending an action by a Participant, beneficiary,
dependent, service provider, government entity or other person, including all
legal fees and other costs of such defense. The Participating Employers shall
also reimburse any such individual for any monetary recovery in a successful
action against such individual in any federal or state court or arbitration. In
addition, if a claim is settled out of court with the concurrence of the
Company, the Participating Employers shall jointly and severally indemnify any
such individual for any monetary liability under any such settlement, and the
expenses thereof. Such indemnification will not be provided to any person who is
not a present or former Employee, or present or former member of the Board of
Directors of a Participating Employer or an Affiliate, nor shall it be provided
for any claim by a Participating Employer or an Affiliate against any such
individual.
9.15 TITLES. The titles are for reference only. In the event of a
conflict between a title and the content of a Section, the content of the
Section shall control.
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<PAGE> 33
9.16 SUBSIDIARIES AND AFFILIATES. Notwithstanding any contrary
provision of this Plan, to the extent it does not adversely affect the
Participant, the Company may provide the compensation and benefits to which the
Participant is entitled hereunder through one or more subsidiaries or
Affiliates.
9.17 ASSIGNMENT; BINDING EFFECT. This Plan is being implemented with
the expectation that a Change of Control will occur on or before December 31,
2000 and with the further expectation that this Plan will be assumed, expressly
or by operation of law, by the Successor in the Change of Control transaction.
This Plan, and the Participant's rights and obligations hereunder, may not be
assigned by the Participant. The Company may assign this Plan and its rights,
together with its obligations, hereunder to any entity that (i) controls the
Company or the Parent, (ii) is controlled by the Company or the Parent, or (iii)
is under common control with the Company or the Parent, or in connection with
any sale, transfer or other disposition of all or substantially all of the
assets or business of the Company and the Parent, whether by merger,
consolidation or otherwise. The Company, or any direct or indirect Successor to
the Company, shall use its reasonable efforts to cause its successor in interest
to assume explicitly the obligations of the Company and the Participating
Employers or such direct or indirect Successor to the Company, as the case may
be, hereunder.
9.18 BENEFICIARY. The Participant shall be entitled, to the extent
permitted under any applicable law, to select and change a beneficiary or
beneficiaries to receive any compensation or benefits payable hereunder
following the Participant's death by giving the Company written notice thereof.
In the absence of such a selection, any compensation or benefit payable under
this Plan following the death of the Participant shall be payable to the
Participant's spouse, or if such spouse shall not survive the Participant, to
the Participant's
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<PAGE> 34
estate. In the event of the Participant's death or a judicial determination of
the Participant's incompetence, reference in this Plan to the Participant shall
be deemed, where appropriate, to refer to the Participant's beneficiary, estate
or other legal representative.
9.19 SHAREHOLDER APPROVAL. The Participant's right to receive any
payment or benefit hereunder in connection with his termination of employment or
otherwise which may be characterized as a "parachute payment" (within the
meaning of Code section 280G), or deemed to constitute a payment made in
connection with or contingent upon a change of control of the Company or the
Parent for purposes of Code section 280G, is contingent upon and subject to the
approval of holders of record of stock of the Company or the Parent, as
applicable, representing more than seventy-five percent (75%) of the voting
power of all outstanding stock of the Company or the Parent, as the case may be,
immediately prior to such change of control (determined without regard to any
stock actually or constructively owned by the Participant and by certain other
persons as determined by the Company).
The Company and the Parent covenant that they will present this Plan in
a timely manner to the shareholders of the Company or the Parent or both, as
appropriate, with a unanimous recommendation of the Boards of Directors of the
Company and the Parent that it be approved by such shareholders.
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<PAGE> 35
IN WITNESS WHEREOF, the Company has caused this Plan to be executed as
of the date first above written.
TA OPERATING CORPORATION
("Company")
By: /s/ Edwin P. Kuhn
------------------------------------------
Name: Edwin P. Kuhn
Title: Chief Executive Officer
And: /s/ James W. George
-----------------------------------------
Name: James W. George
Title: Senior VP and Chief Financial Officer
9-6
<PAGE> 36
EXHIBIT A
---------
Ara A. Bagdasarian
William A. Bartkus
Thomas A. Buchas
Larry W. Dockray
Kirk French
Peter P. Greene
Tom Jennings
Steven C. Lee
Dan McHenry
Fred L. Snell
George E. Strickland
Joseph Szima
Joseph P. Vainner
Ivan W. Wagner
Peter P. Ward
Michael G. Weathers
